Lawsuit seeks to get doctors at executions

North Carolina's prison agency says the state medical board is making it difficult to find physicians to take part.

In an unusual development, the North Carolina Department of Corrections sued the state's medical board Tuesday, asserting that the board's threat to discipline doctors participating in executions had prevented the state from getting a physician to be present at lethal-injection executions.

The suit was filed in Raleigh the same day that Superior Court Judge Donald W. Stephens called off an imminent execution after state officials informed him they had been unable to obtain the services of a doctor, as required by state law.

Inmate Allen R. Holman, 47, was scheduled to die Friday in the execution chamber at Central Prison in Raleigh. He was convicted of killing his wife in 1997.

Legal experts said the suit marked the first time a state agency had sued a medical association stemming from the controversy over doctor involvement in capital punishment.

North Carolina law requires that a doctor be present at executions. However, the state medical board said in January that although a doctor could be present, any other participation in the process violated its ethics policy.

Last month state officials adopted procedures mandating that a physician monitor an inmate's vital signs and gave doctors the responsibility of halting an execution if the inmate appeared to be suffering excessively.

North Carolina, like California and 35 other states, uses a three-drug combination to execute inmates, who are strapped to a gurney. Lawyers for condemned inmates around the country have asserted in lawsuits that lethal-injection procedures violate the constitutional bar on cruel and unusual punishment.

Executions have in effect been halted in 11 states as a result of lethal-injection challenges.

Last April a federal judge in Raleigh initially blocked an execution but allowed it to proceed after prison officials agreed to use a machine to monitor an inmate's level of consciousness. Judge Malcolm J. Howard said the execution could proceed if medical personnel were present to ensure that the inmate was unconscious before the lethal injection was administered.

Some North Carolina physicians became concerned that this would lead to doctor involvement in executions, prompting the state medical board to take the stance against any direct physician role.

In the lawsuit filed Tuesday, Marvin Polk, warden of Central Prison, said in an affidavit that the state medical board's policy had made it impossible for North Carolina officials to find a doctor willing to assist in executions.

The suit asks a judge to rule that a lethal injection is not a "medical procedure," putting participation in executions outside the realm of activities for which the medical board could discipline a doctor. It also asks the court to prohibit the medical board from taking disciplinary action against doctors for being involved in executions.

Officials at the North Carolina medical board did not return calls seeking comment.

Arthur Caplan, chairman of the department of medical ethics at the University of Pennsylvania, said getting a court to declare lethal-injection executions nonmedical "may be to win the battle but lose the war. If they are not medical, then a doctor would have no reason to be involved," other than to certify that the inmate is dead.

George Annas, a professor of health law, bioethics and human rights at Boston University School of Public Health, said "it would be highly unusual for a court" to intervene in a matter like this and tell a medical association what is a "medical procedure" and the scope of actions for which it could discipline a doctor.